Overview
In In re Nuverra Environmental Solutions, Inc., Case No. 18-3084, the Third Circuit affirmed the opinion of the District Court for the District of Delaware denying the confirmation appeal of an unsecured noteholder as equitably moot. In doing so, the Third Circuit (i) refused to allow a full-class recovery, as it would unscramble the substantially consummated plan, and (ii) refused an individualized payout to the bondholder, as it would unfairly discriminate against other members of the class in contravention of the Bankruptcy Code.
Bankruptcy cases differ from typical lawsuits in a variety of ways, including the parties involved. Whereas standard lawsuits generally involve a plaintiff and a defendant, bankruptcy cases have a different cast of “players,” including the debtor or debtor in possession, creditors, the bankruptcy trustee (i.e., Chapter 7 trustee, Chapter 13 trustee, etc.), committees, and the United States Trustee. Often, these players will retain attorneys to represent their interests in bankruptcy cases. Understanding the roles of each of these players will help you navigate the bankruptcy system.
COVID-19 continues to disrupt normal business operations, creating liquidity problems and negative working capital for many companies. As fund sponsors take actions to help their portfolio companies navigate through this time, they should also sensitize directors to insolvency issues and the associated litigation risks.
Credit bidding is the process whereby a lender, with a secured charge over a borrower’s asset, bids on that asset using the very debt that is owed by the borrower to the lender. The circumstances are usually foreclosure of a lending position against a borrower.
In the maritime sector, this process often takes place in the context of forced judicial sales of vessels pendente lite (i.e., during the course of litigation) and frequently before judgment is obtained against the borrower shipowner.
There are nine changes in the Bankruptcy code under the CAA, which extends additional support from the federal government both individual and business debts due to the COVID pandemic. Of these nine bankruptcy changes only three directly affect the residential mortgage industry. These are:
1. Chapter 13 only – Order of discharge entered albeit mortgage debt still in default. Even when the debtor has not cured the mortgage debt under chapter 13, a discharge order may be entered where 2 requirements are satisfied:
The Consolidated Appropriations Act of 2021 (the Appropriations Act) is a $2.3 trillion spending bill that combines stimulus relief for the COVID-19 pandemic and an omnibus spending bill for the federal fiscal year. While the Appropriations Act is intended to enhance stimulus relief under the CARES Act and does so in many profound ways, it also includes provisions narrowly targeted to assist companies that have filed for protection under the U.S. Bankruptcy Code (Bankruptcy Code) by temporarily modifying the rules governing a tenant’s performance under its leases.
In This Issue:
The Year in Bankruptcy: 2020
A brief chronicle of the year's notable developments in corporate bankruptcy and restructuring. [read more …]
Focus on Health Care Provider Bankruptcies
We discussed in the March 2020 edition of the Texas Bar Journal1 the bankruptcy court ruling by Judge Craig A. Gargotta of San Antonio in In Re First River Energy LLC that oil and gas producers in Texas do not hold perfected security interests in oil and gas well proceeds, notwithstanding the Texas Legislature’s efforts to protect producers and royalty owners following the downturn in the 1980s. The Fifth Circuit recently reaffirmed Judge Gargotta’s decision.
On October 26, 2020, the U.S. Bankruptcy Court for the Southern District of Texas issued a long-awaited ruling on whether natural gas exploration and production company Ultra Petroleum Corp. ("UPC") must pay a make-whole premium to noteholders under its confirmed chapter 11 plan and whether the noteholders are entitled to postpetition interest on their claims pursuant to the "solvent-debtor exception." On remand from the U.S.